If Lance Armstrong Is Guilty, Why Isn’t He Going to Jail?

Why dopers are rarely prosecuted.

The U.S. Anti-Doping Agency released what it called “conclusive and undeniable proof” on Wednesday that Lance Armstrong is guilty of doping. Armstrong joins a long list of professional athletes who have been accused of, or have admitted to, using performance-enhancing drugs. Why don’t dopers ever go to jail?

Prosecutorial discretion. Possession of anabolic steroids without a prescription is a federal misdemeanor punishable by up to one year in prison and a minimum fine of $1,000. Federal prosecutors, however, almost never bother with steroid possession cases, because they are an extremely low priority. The evidence against professional athletes is also flimsy in most cases. The best evidence prosecutors could offer against an athlete is a failed drug test or eyewitness testimony—far short of the red-handed proof that police can usually produce in ordinary drug possession trials. Few prosecutors would take their chances on those odds. Criminal prosecution of professional athletes for steroid possession is so rare that, when former Sen. George Mitchell was looking for players to cooperate in his investigation of performance-enhancing drugs in baseball, he assured them that none of the 221 baseball players who had already tested positive had been prosecuted.

Not all doping is criminal. Neither human growth hormone nor erythropoietin is a controlled substance. Reinfusing your own blood back into your body, while against the rules of professional cycling, is also not a crime.

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Prosecutors in doping cases might worry about public opinion as well. Professional athletes can afford excellent attorneys who drag the cases on for years. Barry Bonds, for example, was convicted of obstructing justice in April 2011, more than three years after playing his final game, and his appeal is still pending. Nearly two years passed between the indictment of Roger Clemens and his ultimate acquittal on charges of making false statements, obstructing justice, and perjury. At some point during these marathon prosecutions, a chorus of commentators accuses the government of wasting prosecutorial resources. Unless prosecutors can charge the athlete with something more serious than misdemeanor possession, they don’t need the headache. The Armstrong case is a classic example. Prosecutors considered charging him with distribution, witness tampering, and mail and wire fraud, but never possession.

The criminalization of steroid possession is controversial to begin with. Anabolic steroids were placed on the controlled substances list in 1990, two years after Ben Johnson’s steroid-fueled defeat of American sprinting hero Carl Lewis at the Seoul Olympics whipped the public into a sustained anti-steroid furor. During the debate, representatives from the Food and Drug Administration, the Drug Enforcement Administration, and the American Medical Association opposed the addition of steroids to the list. Critics of the decision point out that anabolic steroids don’t raise the same risks of dependency and physical harm as do other Schedule III controlled substances such as amphetamines. Even today, some individual states don’t include steroids on their own controlled substance lists. Recent polls also suggest that Americans want the federal government to stay out of the doping controversy.

To be clear, prosecutions for steroid possession happen—they just don’t happen to famous athletes. The typical defendant is a gym rat who left his stash visible during a traffic stop or ordered a shipment via the Internet. In the overwhelming majority of cases, state and local prosecutors handle the charges.